New York State Court of Claims

New York State Court of Claims
HERNANDEZ v. THE STATE OF NEW YORK, # 2010-031-503, Claim No. 110345


Claimant failed to demonstrate State was negligent relating to alleged assault upon him by unknown inmate.

Case information

UID: 2010-031-503
Claimant short name: HERNANDEZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110345
Motion number(s):
Cross-motion number(s):
Claimant's attorney: JUAN HERNANDEZ, PRO SE
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 1, 2010
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, Juan Hernandez, an inmate at all relevant times confined at Auburn Correctional Facility ("Auburn") filed Claim No. 110345 on January 10, 2005. In his claim, Mr. Hernandez alleges that, on August 19, 2004, an employee of the State of New York negligently opened his cell door, permitting him to be assaulted by two or three unknown inmates. He also alleges that he was denied proper medical care after the assault. I held a trial in this matter on September 10, 2009.(1)

Claimant testified that, on August 19, 2004, he returned to his cell from dinner at the Auburn mess hall and shut his cell door behind him. According to Claimant, about 25 minutes later, while still in his cell, he was attacked by two or three inmates. He asserts that a correction officer must have opened his cell again after he locked it behind him.

The attack took place at 6:45 p.m. and came as a complete surprise to Claimant. He did not know his assailants or why they assaulted him. He testified that he suffered swelling type injuries to his head and face and sustained a laceration on his left thigh. At 8:50 p.m. that same night, Claimant saw Correction Officer Henry, who sent him to the medical center where he alleges he received no medical treatment. However, the next day the Claimant received approximately five stitches and ibuprofen.

On cross-examination, Claimant conceded that when he went to the medical center on the night of the alleged assault, he told staff that he had fallen, not that he had been assaulted. He also admitted that he told the investigating officer, Correction Sergeant Michael Withers, that he had fallen and that he did not need protective custody (Exhibit F). Defendant also established that Claimant was in a second fight with another inmate the next morning, prior to receiving the stitches he alleges were related to the assault the evening before.

Defendant called Correction Officer Hailston. Officer Hailston was in charge of letting Claimant back into his cell on the date of the alleged assault. Officer Hailston testified that Claimant returned to his cell after dinner, before 6:00 p.m. He indicated that he would have passed Claimant's cell when he made his rounds at 6 p.m., 6:30 p.m. and again after 7:00 p.m. when he let the inmates out to the yard. Officer Hailston stated that, as he made his rounds, he checked the cells and made sure they were closed. Officer Hailston stated that, other than to let Claimant into his cell after dinner, he did not open Claimant's cell door, nor did he see Claimant's cell door left open. Also, significantly, while making his rounds on the evening of the assault, Claimant made no complaints or reports to him.

Correction Sergeant Michael Withers also testified for the State. He is a 29-year veteran of the New York State Department of Correctional Services ("DOCS"). His duties at Auburn in August 2004 included front-line supervision for Blocks C and D and the hospital area, as well as supervision of staff and inmates. He also was responsible for investigating inmate complaints, including Claimant's complaint that he was assaulted in his cell on August 19, 2004. Sergeant Withers testified that he had no personal recollection of Claimant or the investigation he conducted but he did write a memorandum about Claimant's complaint (Exhibit I). In that memorandum, he noted that Claimant informed him that he was injured by falling off his toilet while trying to take something off his cell-wall shelf. Sergeant Withers wrote that he continued to question Claimant about how he was injured and offered Claimant protective custody based on his interview with him, as a matter of DOCS policy (Exhibit I). Claimant, however, maintained his story that his injuries were accidental and, eventually, signed a Waiver of Protective Custody.

The State also called Nurse Richard Sharples, currently a Nurse II at Auburn and a licensed Registered Nurse since 1984. He has worked at Auburn for 23 years. Nurse Sharples testified that he saw Claimant on August 19, 2004 after what Claimant reported was an accidental fall in his cell. In Claimant's Ambulatory Health Records (Exhibit A), Claimant's injuries were recorded as a one-inch-long, half-inch-wide laceration to his outer left thigh and puffiness below the left eye. The Claimant, however, had no broken bones and was not dizzy. The cut on his leg did not require stitches and was covered with steristrips as a butterfly bandage. They were used instead of stitches because the cut was not deep and, therefore, stitches were not necessary at that time. During Claimant's medical exam, no other bruises were discovered and the Claimant was given ice and Tylenol. At no time did Claimant tell Nurse Sharples about his cell door having been left open or that he had been assaulted. Nurse Sharples confirmed that it is the Claimant's signature on the upper portion of the Inmate Injury Report (Exhibit K), where Claimant stated that he fell in his bathroom and received injuries from that accidental fall.

Claimant also sought medical care the next day, August 20, 2004, and this information is also recorded in Exhibit A. Claimant was brought in with deeper lacerations to his left thigh. The bandages that were placed on the wound the night before still covered the area. This time, Claimant needed 5 stitches to close the wound on his left thigh. The area under Claimant's left eye was still puffy and starting to discolor. Claimant then indicated, for the first time, that he was assaulted by two inmates the evening before, August 19, 2004 (Exhibit A).

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm (Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609).

In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault, but failed to do so (Huertas v State of New York, 84 AD2d 650). In Sanchez v State of New York (99 NY2d 247), the Court of Appeals explained that the State can be liable if the assault upon an inmate was reasonably foreseeable and the State failed to take reasonable steps to prevent the assault.

Mr. Hernandez alleges that he was assaulted on August 19, 2004. Nothing in the record indicates that DOCS knew Claimant to be at risk. Nor was any evidence presented about the identity of the assailant(s) or their motive for assaulting Claimant. Also, DOCS had no notice or opportunity to intervene to prevent the attack. Claimant admitted that even he was surprised by the attack. Sanchez requires that I consider whether or not DOCS could have reasonably known that Claimant was likely to be attacked. Again, there is nothing in the record to suggest that Claimant was in any way vulnerable. Further, I find no evidence whatsoever to support Claimant's contention that Officer Hailston negligently opened Claimant's cell. On the contrary, it appears from the record that if Claimant's cell was left open, it was because claimant himself failed to close it properly. Thus, Claimant's cause of action for negligence relating to the assault must be dismissed. Now I must consider Claimant's medical malpractice/negligence claim.

It is well settled that the State has a duty to provide reasonable and adequate medical care to the inmates of its correctional facilities (River v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). The State may be cast in liability for injuries that result because its physicians fail to use ordinary and reasonable care or to exercise their best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). Only expert medical proof can establish the necessary legal causation required to impose liability and demonstrate that there was a deviation from good and accepted standards of medical care (see Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916;

Berger v Becker, 272 AD2d 565; Koehler v Schwartz, 48 NY2d 807). Claimant presented no such proof.

Similarly, a cause of action sounding in medical negligence, in essence, alleges negligent omissions or commissions by State caregivers which can be readily determined without the necessity of expert testimony. Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo Gen. Hosp., 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hosp., 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254), and other similar circumstances.

The essence of Claimant's medical malpractice and/or negligence claim is essentially that DOCS failed to treat his injuries on August 19, 2004 when he appeared at the Medical Center at Auburn. It is clear from the August 19, 2004 Ambulatory Health Record entry (Exhibit A), as well as Nurse Sharples' testimony at trial, that Claimant did, in fact, receive treatment. Thus, his medical malpractice and negligence claims must also fail.

Accordingly, the claim is hereby dismissed in its entirety. All other motions on which the Court may have previously reserved or which were not previously determined are hereby denied.


March 1, 2010

Rochester, New York


Judge of the Court of Claims

1. Claimant submitted a request for witnesses which was untimely and was not served on the Defendant. I denied Claimant's request to postpone the trial. I note that this trial has already been postponed twice. Claimant's request for an interpreter was granted.